Picture the scene. Your neighbor has a stately tree on their property – well within their property line. Yet its roots have traveled across the property line onto your property. What are your rights? In Washington, the question appeared to have been answered in Gostina v. Ryland:
“The overhanging branches of a tree, not poisonous or noxious in its nature, are not a nuisance per se, in such a sense as to sustain an action for damages. Some real, sensible damage must be shown to result therefrom…. One adjoining owner cannot maintain an action against another for the intrusion of roots or branches of a tree which is not poisonous or noxious in its nature. His remedy in such case is to clip or lop off the branches or cut the roots at the line.”
Does this mean you may cut a root or branch even if it damages the tree? Attorneys, notwithstanding Gostina, commonly urged caution and recommended against self-help, especially if there was a chance of permanently damaging or killing the tree.
Earlier this year, Division One of the Washington Court of Appeals issued an opinion in Mustoe v. Xiaoye Ma, 193 Wn. App. 161, 371 P.3d 544 (2016), holding that Gostina means what it says – if a tree root strays onto your property, you may cut it. In Mustoe, a large portion of the roots of two trees on Mustoe’s property extended onto Ma’s property. The roots were removed when a trench was dug on the Ma property. When saying that the roots were removed doesn’t paint the picture. The trees were large Douglas fir trees located two and a half feet from the property line. Cutting the roots removed nearly half of the trees’ roots – all from one side, exposing the trees to southerly winds with no support creating a high risk they could fall in a storm and damage Mustoe’s home. Mustoe sued.
While acknowledging Gostina’s explicit statement approving self-help, Mustoe argued that Gostina was limited to self-help that was limited to the removal of a branch or root, not action that resulted in the removal of the tree itself. Mustoe further asserted that Gostina imposed a duty of good faith and reasonableness when acting against the offending roots so not to cause damage to the non-encroaching portions of the tree. The court rejected these arguments finding that Gostina imposed no duty of good faith or reasonableness.
To support her position that Washington law should require a “reasonableness” standard, Mustoe cited to a California case, which, while acknowledging the right of self-help, imposed a “reasonableness” standard when acting, and a New York case, that again, allowed self-help, but not to where the actor is damaging the main support system of the tree. In rejecting both these cases, the court noted that the general rule in America follows the holding in Gostina, even if the self-help damages the tree.
Mustoe similarly asserted a claim of negligence, but failed to show what duty was breached – what legal right did they have that was invaded? Since Ma had the right to remove the roots, Mustoe cannot complain of their removal, even if the removal was accidental rather than intentional.
Mustoe then asserted a nuisance claim arguing that by cutting the tree roots, Ma unreasonably interfered with Mustoe’s use and enjoyment of her property. In rejecting this argument, the court analogized it to Collinson v. John L. Scott, Inc., 55 Wn. App. 481, 778 P.2d 534 (1989), a case where a landowner asserted a nuisance claim against the adjoining property owner who constructed a building that blocked their western view. This nuisance claim was rejected because plaintiff possessed no easement for light, air, or view, that would prevent the lawful erection of a building. Just as in Collinson, Ma failed to establish that she had a legal cause to complain of the removal of the roots on Ma’s property.
Finally, Ma argued that she was entitled to damages under Washington’s timber trespass statute which allows damages when an owner’s tree is damaged without lawful authority. This final argument was easily rejected by the court noting there was legal authority for the removal of the roots.
This blog post is offered for general information and educational purposes only. It is not offered as legal advice and does not constitute legal advice or opinion. Although I intend to keep this information current, I do not promise or guarantee that the information is correct, complete, or up-to date. You should not act or reply upon the information in this post without seeking the advice of an attorney.